The DEP Must Adequately Explain its Administrative Decisions to Avoid Remand

December 7, 2021 | No Comments
Posted by Afiyfa H. Ellington

In In re Flood Hazard Area Verification (Riparian Zone Only) File No. 2105-04-0002.1FHA1870001 et al, Superior Court of New Jersey, the Skylands Preservation Alliance (SPA) appealed from the State of New Jersey Department of Environmental Protection (DEP)’s issuance of a Riparian Zone Only Verification (RZOV) for a unnamed tributary stream of the Musconetcong River to the owners of a 112 acre parcel of property wherein they sought to construct a commercial warehouse. The owners verified that there was no flood hazard under the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 to -103.

DEP initially concluded that a flood hazard area verification was required to determine the stream’s flood hazard area elevation. However, shortly thereafter, DEP determined that a flood hazard area permit was not required for development due to the vertical elevation change between the proposed grading of the grounds of the proposed structure and the stream. DEP issued the RZOV.

While the Appellate Division affirmed the DEP’s determination that SPA lacked standing as a third-party to challenge the RZOV, the Appellate Division determined that DEP’s decision to about face on the necessity of a flood hazard area verification without a detailed explanation for its administrative decision or offer an opportunity for public comment was arbitrary, capricious and unreasonable. The Appellate Division remanded for further proceedings before the DEP and held that the DEP’s decision following the proceedings is also appealable.


GH&C Secures Appellate Division Victory – Court Clarifies Options for Challenging State Agency Actions

June 29, 2021 | No Comments
Posted by David J. Miller

Recently, Giordano, Halleran & Ciesla, P.C. (“GH&C”) attorneys successfully defended a challenge to a client’s development approvals in the New Jersey Appellate Division. In its decision, the Court clarified the options available to parties seeking to challenge permits issued by the New Jersey Department of Environmental Protection (“DEP”) and other agencies.

The case involved a homeowners’ association’s (the “HOA”) attempt to overturn certain DEP approvals at a neighboring development site. After the approvals were issued, the HOA requested that DEP hold an adjudicatory hearing to consider the HOA’s allegations that the approvals were improperly granted. DEP denied the hearing request on the basis that the HOA did not have a “particularized property interest” as required to challenge such an approval as a third party. The HOA appealed the denial of the hearing request to the Appellate Division, but also requested that the Court review the substance of the approvals and reverse them due to alleged procedural and substantive deficiencies in the developer’s application. Importantly, the HOA did not also file a direct appeal to the Appellate Division within 45 days of DEP’s issuance of the approvals. Read more


Public Health Emergency’s End Sees DEP Public Comment Periods Scaled Back

June 23, 2021 | No Comments
Posted by Steven M. Dalton

In another step towards the return to normalcy, DEP Commissioner LaTourette took action by Administrative Order 2021-12 ending expanded public comment timeframes that had been made applicable to approvals under various DEP regulatory programs. In an action tied to the Covid-19 Public Health Emergency, DEP, by Administrative Order 2020-06, had previously implemented a 30-day extension of public comment timeframes on applications for approvals under CAFRA, wetland and flood hazard, solid and hazardous waste, and water quality and supply programs, among others. The end of the Public Health Emergency, effective June 4, 2021, eliminated the need for extended public comment timeframes. AO 2021-12 became effective June 17, 2021, repealing AO 2020-06 and ending the requirement that applicants for applicable DEP approvals extend opportunity for public comment. But for DEP’s action, extended public comment timeframes would have remained in effect until January 11, 2022 under the recent legislation and Executive Order that terminated the Covid-19 Public Health Emergency. Read more


In Unusual Move, Developer Is Awarded Attorneys’ Fees and Costs Over Town’s Settlement Breach

June 17, 2021 | No Comments
Posted by Marc D. Policastro

Co-authored by Linda M. Lee

In a win for developers, a New Jersey judge has taken the unusual step of awarding attorneys’ fees and costs for breach of a court-approved settlement over a proposed inclusive residential development.

Somerset County Superior Court Judge Kevin M. Shanahan, P.J.Cv., held that Hillsborough Township violated the settlement when its planning board failed to approve a site plan for 96 units, including 23 affordable-housing units.

Municipalities should not “be permitted to repeatedly violate a Court Order and flout its affordable housing obligations under the Constitution without sanction,” the judge wrote in his June 7 decision. Read more


NJDEP Adopts Amended Remediation Standards

June 10, 2021 | No Comments
Posted by Steven M. Dalton

The New Jersey Department of Environmental Protection (“DEP”) published notice on May 17, 2021 of its March 31, 2021 adoption of amended remediation standards set forth at N.J.A.C. 7:26D-1.1 et seq. (55 N.J.R. 775).  It also released a plethora of new and updated guidance documents intended to assist remediation professionals and responsible parties navigate the rule requirements.  The amended rules were adopted with little change from DEP’s April 6, 2020 rule proposal notwithstanding extensive substantive comment and objections by various industry groups representing parties who engage in remediation, including NJBA.  The amended remediation standards may have ramifications for persons currently engaged in remediation and, potentially, persons who previously completed a DEP regulated remediation. Read more


Governor Signs Law Ending Public Health Emergency

June 7, 2021 | No Comments
Posted by Steven M. Dalton

On June 4, 2021, in corresponding actions, Governor Murphy signed a law (A.5820) and Executive Order (EO 244) terminating the Covid-19 Public Health Emergency.  These actions leave the State of Emergency in place, but have implications for various Executive Orders and related agency administrative orders that relied upon the Public Health Emergency declared by the Governor under EO 103.

Under the new law, most Executive Orders that relied upon the Public Health Emergency will expire 30 days after the law’s effective date.  However, Administrative Orders, directives or waivers issued by a State agency in reliance upon EO 103 will expire January 11, 2022, unless they are continued, modified or revoked by the agency before that date.

For various development approvals extended by the Covid-19 Permit Extension Act (P.L. 2020, c. 53), the end of the Public Health Emergency marks the end of the “COVID-19 Extension Period”.  Approvals that qualified for protection under the PEA are afforded a “minimum” tolling of not less than 6-months now that the Covid-19 Extension Period has ended with the termination of the public health emergency.  For such approvals the beneficial tolling afforded by the PEA may be greater than 6 months depending on the overall time period that the approval’s facial duration overlapped with of the Covid-19 Extension Period.

EO 136, which tolled the timeframes for processing various DEP permits and approvals and suspended the “90 Day Law,” will sunset July 4, 2021 under the newly signed legislation.  DEP relied upon EO 136 in issuance of Administrative Order 2020-06 to extend by 30-days timeframes for public comment on applications for permits and approvals under various regulatory programs, including among others coastal, wetland and flood hazard.  Under the new legislation, AO 2020-06 will remain in effect until January 11, 2022 barring some contrary action by DEP.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. are available to assist you  with these or other developments.  Please contact Steve Dalton, Michael Gross or any of our environmental attorneys with any questions.


NJDEP Further Extends Site Remediation Timeframes – UPDATE

February 24, 2021 | No Comments
Posted by David J. Miller

Co-Authored by Linda M. Lee

On February 9, 2021, we reported that the New Jersey Department of Environmental Protection (“NJDEP”) issued a Notice of Rule Waiver/Modification/ Suspension (the “Notice”) announcing an additional extension of the statutory timeframes established by the New Jersey Site Remediation Reform Act (“SRRA”), N.J.S.A. 58:10C-1, et seq.

Since that time, NJDEP clarified that “soil only” cases subject to the 2014 and 2016 deadlines under the SRRA were not referenced in the Notice because such sites are subject to a February 6, 2019 regulatory timeframe and a February 6, 2021 mandatory timeframe to complete the remedial action. However, a request may be submitted to NJDEP by May 1, 2021 to extend the mandatory timeframe by one year to February 6, 2022. The Remedial Timeframe Notification Form needed for the extension request can be accessed HERE.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. are closely monitoring NJDEP’s response to the COVID-19 pandemic and will provide further updates as they become available.


NJDEP Further Extends Site Remediation Timeframes

February 9, 2021 | No Comments
Posted by David J. Miller

Co-Authored by Linda M. Lee

In 2020, the New Jersey Department of Environmental Protection (“NJDEP”) twice announced limited extensions to certain site remediation timeframes in response to the COVID-19 pandemic. On February 1, 2021, NJDEP issued a Notice of Rule Waiver/Modification/ Suspension (the “Notice”) announcing an additional extension of the statutory timeframes established by the New Jersey Site Remediation Reform Act (“SRRA”), N.J.S.A. 58:10C-1, et seq.

The Notice extends timeframes for two categories of contaminated sites. The first category is those sites for which a remedial investigation was not required by SRRA to be completed by either May 7, 2014 or May 7, 2016 (generally, sites where contamination had not been discovered by the time SRRA went into effect).  For such sites, the Notice provides an extension of a total of 455 days (inclusive of the earlier two extensions) for certain remediation timeframes that has or will expire during the current public health emergency in New Jersey, as declared in Executive Order No. 103. Specifically, the Notice extends the timeframes to initiate, complete, and/or submit a report regarding a preliminary assessment, site investigation, initial receptor evaluation, immediate environmental concern contaminant source control, remedial investigation, and remedial action. Please refer to the Notice for additional details regarding the specific extensions. The Notice also extends all subsequent timeframes once any individual timeframe is extended. Read more


AVOID GETTING TANGLED IN THE RED TAPE: CONFIRM YOUR REGISTERED APPROVALS QUALIFY FOR PERMIT EXTENSION ACT PROTECTION

November 18, 2020 | No Comments
Posted by Steven M. Dalton

The Permit Extension Act of 2020 (“PEA”) extends certain governmental permits and approvals for the duration of the COVID-19 Extension Period, but with a catch: you must have taken affirmative action to register qualifying approvals.  The law provides: “[a]ny  government approval subject to the automatic  suspension of the  running period of such approval for the COVID-19 extension period shall be registered with the department within 30 days of the notice in the New Jersey register.”  The New Jersey Department of Environmental Protection (“DEP”) published NJ Register notice on September 8, 2020, and qualifying approvals were required to be registered by October 8, 2020.

Not content with limiting the rights of permittee’s by the registration process, the Legislature added more red tape in the law by requiring DEP to publish a list of all registered approvals.  Without much fanfare, DEP published a list of registered approvals on its website.  A link to the list of registered approvals can be found hereIf you registered an approval with DEP, you should review the list of registered approvals published by DEP to confirm that your approval is included on the list, and contact DEP for corrective action if it is not to ensure you obtain the benefit of PEA protection.  For those who successfully cut through the law’s red tape, the COVID-19 Extension Period began on March 9, 2020 and will continue until the end of the COVID-19 public health emergency with at least six months additional tolling thereafter.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. regularly counsel clients on matters concerning DEP permits and approvals.  If you have questions regarding the PEA or other permitting or regulatory compliance matters, please contact us.


NJDEP Publishes Registration Process for Permit Extension Act of 2020

September 9, 2020 | No Comments
Posted by Linda M. Lee

On July 1, 2020, the Permit Extension Act of 2020 (“PEA”) was signed into law.  The PEA extended the terms of certain governmental permits, approvals, and deadlines for the duration of the “COVID-19 Extension Period,” contingent on the holder of the permit or approval registering the affected permit or approval with the issuing state agency.  As required under the PEA, on September 8, 2020, the New Jersey Department of Environmental Protection (“NJDEP”) published a Notice in the New Jersey Register listing the permits and approvals that are tolled by the PEA.  In addition, the Notice provided a link to a website for additional information regarding the registration process and a registration form.  The Extension Period began on March 9, 2020 and continues until the end of the COVID-19 public health emergency.

Under the PEA, the eligible permits and/or approvals must be registered with the NJDEP by October 8, 2020 (i.e., within 30 days of publication of the Notice) to qualify for an extension.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. regularly counsel clients on matters concerning NJDEP permits and approvals.  If you have questions or want clarification regarding the registration process, please contact us.